Frederick William Gentle, C.J.
1. This is an appeal by the judgment-debtor against the order of Kunhi Raman, J., who reversing the order of the learned Master, held that E.P. Nos. 126 and 148 of 1946 on the file of this Court are not barred by limitation and directed that the relief sought by the two petitions should be granted.
2. The circumstances are somewhat complicated, but reference will be made only to the relevant facts.
3. On 25 th March, 1935, the respondent-decree-holder obtained a money decree against the appellant judgment-debtor in O.S. No. 112 of 1934 in the Court of the Subordinate Judge of Devakottah.
4. In C.S. No. 196 of 1933 in this Court the appellant sued a Chetty firm in respect of an advance of Rs. 11,250 made in 1916 out of a family trust fund in which the respondent and the appellant are interested; the claim made was for about Rs. 50,000, including principal and compound interest; the suit was dismissed in the trial Court but was decreed in the appellate Court; and an appeal to His Majesty in Council by the Chetty firm was rejected. By 1941 in respect of that decree, a sum of about Rs. 70,000 had been paid into this Court by the Chetty firm, being as to, about, Rs. 65,000, the judgment-debt and the balance for taxed costs. The appellant claimed to be entitled to all the costs to which he had been put, which he alleged amounted to over Rs. 13,000, as well as to the taxed costs Rs. 4,146-8-11. He contended that he should be recouped his total expenditure and that the difference between the amount of taxed costs and the total costs should be allotted to him out of the sum of Rs. 65,000 which undoubtedly, and he did not suggest to the contrary, was money belonging to the trust.
5. On the 26th March, 1941, the respondent caused his decree in O.S. No. 112 of 1934 in the Devakottah Court to be transferred to this Court for execution and on the 4th August, 1941, he issued E.P. No. 173 of 1941 for execution of that decree, after it had been transferred. By that date the amount due to the respondent under the decree was Rs. 12,753-3-3. The relief sought by the execution petition was the attachment of that sum out of the amount of Rs. 70,000 in Court in respect of C.S. No. 196 of 1933, on the ground that the appellant, as the decree-holder in that suit, was entitled to be reimbursed and paid Rs. 13,000 from and out of the moneys in Court. By 1943, the Hindu Religious Endowments Board had been approached to settle a scheme in respect of the money in Court belonging to the family trust. Application No. 217 of 1942 was issued in that behalf and was directed to be heard with. E.P. No. 173 of 1941. On the 3rd February, 1943, the E.P. and the application were posted for being mentioned as settled, as recited in the formal order of this Court. At the hearing, learned Counsel appeared respec-tively for the respondent-decree-holder, appellant-judgment-debtor and the Board. Out of the total sum in Court, credited to C.S. No. 196 of 1933, was a sum of Rs. 4,146-8-11 the amount of the taxed costs, which sum undoubtedly was due to the appellant. As mentioned he was claiming further sums for his out-of-pocket expenses and for costs which had not been allowed on taxation against the Chetty firm and that the difference should come out of the Rs. 65,000 balance. The Hindu Religious Endowments Board in addition to framing a scheme were also to decide how much of that sum should be paid to the appellant so as to reimburse him the amount of additional costs which he was seeking to be recouped. At the hearing on the 3rd February, 1943, a memorandum of consent, signed by all the parties and their respective advocates and by the advocate appearing for the Board, was filed and it was by consent ordered that,
(1) out of the sum of Rs. 4,146-8-11 the Registrar do pay
(a) Rs. 2,450 to the respondent in part satisfaction of his decree in O.S. No. 112 of 1934,
(b) Rs. 1,396-8-11 to the advocate for the appellant, and
(c) Rs. 100 each to the three sets of advocates appearing for the respondent, the appellant and the Board for their costs of the petitions;
(2) the above payments should be without prejudice to the rights, if any, of the parties to the trust funds of Rs. 65,000 which had been invested in the name of the Registrar;
(3) the said funds should remain in Court and the rights of the parties thereto should he worked out in appropriate proceedings separately.
6. No application was made and no order was passed in E.P. No. 173 of 1941 for attachment, as was sought in the petition.
7. Thereafter the respondent made no application to re-transfer his decree to the Devakottah Court and it remained in the custody of the High Court, which Court was not asked to give and it did not therefore furnish to the Devakottah Court a certificate of part satisfaction pursuant to Section 41 of the Code.
8. Although the decree was still in the High Court, not having been re-transferred to the Devakottah Court, on the 18th January, 1946, within three years from the order made on the 3rd February, 1943, in E.P. No. 173 of 1941, the respondent issued E.P. No. 77 of 1946 in the Devakottah Court for attachment of the appellant's moveables in execution of his decree in O.S. No. 112 of 1934.
9. On the 25th June, 1946, after the expiration of three years from the date of the order in E.P. No. 173 of 1941, the respondent issued E.P. No. 126 of 1946 in this High Court for execution of the Devakottah decree, which was still in this Court. In the tabular statement it is stated that E.P. No. 77 of 1946, filed on the 18th January, 1946, is the date of the process for the last order of execution against the judgment-debtor. No reference is made in the tabular statement to the order in E.P. No. 173 of 1941 as the last order made in execution. The relief claimed is for attachment of a cheque for Rs. 13,203-5-0 directed to be issued to the appellant.
10. On the 2nd August, 1946, the respondent issued another execution petition in this Court, E.P. No. 148 of 1946, in which regarding the date of the last order of execution, column 2 of the tabular statement, gives E.P. No. 173 of 1941 in which Rs. 2,450 was realised and in which no final order had been passed and, also, E.P. No. 77 of 1946 filed on the 18th January, 1946, in the Devakottah Court which, it is stated, was dismissed on the 26th July, 1946. There these two execution proceedings are relied upon as bringing E.P. No. 148 of 1946 within the statutory limitation period. The relief claimed is that E.P. No. 173 of 1941, which, it is said, had not been finally disposed of should be revived and continued and that the sum of Rs. 13,203-5-0 lying in Court to the appellant's credit and the cheque for that sum should be attached.
11. Article 182(5) of the Limitation Act provides a limitation period of three years for the execution of a decree, calculated from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree. The contention for the respondent is that the order made on the 3rd February, 1943, in E.P. No. 173 of 1941, was not a final order and that the petition did not proceed to final disposal and was still subsisting when E.Ps. Nos. 126 and 148 of 1946 were issued; alternatively that E.P. No. 77 of 1946 was an application in execution issued in the proper Court within three years of the final order in E.P. No. 173 of 1941 and its issue was a step-in-aid of execution and therefore E.Ps. Nos. 126 and 148 of 1946 are not barred by limitation.
12. The learned Master held that the order made in E.P. No. 173 of 1941 was a final order which disposed of that petition and, also, that E.P. No. 77 of 1946 issued in the Devakottah Subordinate Court, was not a valid application filed in a proper Court; consequently, the two execution petitions filed in this Court after the expiration of three years from the date of the final order in E.P. No. 173 of 1941 were barred by Article 182(5) of the Limitation Act.
13. On appeal, Kunhi Raman, J., held that the order made in E.P. No. 173 of 1941 was not a final order and the petition was not disposed of so that the present execution petitions are not barred and the earlier petition can be revived or continued. On that finding the learned Judge did not consider it necessary to express a decision regarding the correctness or otherwise of the order in the Devakottah Court on E.P. No. 77 of 1946. Accordingly he allowed the appeal and set aside the learned Master's order of dismissal and granted to the respondent the relief sought in the two execution petitions. This appeal is against the learned Judge's order.
14. Whilst it is not conclusive as to the effect of the order made in E.P. No. 173 of 1941, it is manifest that, until the issue of E.P. No. 148 of 1946, the respondent-decree-holder himself considered that that was a final order and that it terminated that execution petition. In the tabular statement in E.P. No. 126 of 1946, reliance is placed solely upon the issue of E.P. No. 77 of 1946, in the Devakottah Court as saving limitation. Further, in his affidavit supporting E.P. No. 126 of 1946, the respondent states, in paragraph 4, that a consent order was passed on the 3rd February, 1943, in E.P. No. 173 of 1941, and, in paragraph 13, that he had filed E.P. No. 77 of 1946, in order to save limitation.
15. Firstly as to the finality or otherwise of the order made on the 3rd February, 1943, in E.P. No. 173 of 1941. In Chidambaram v. Murugesan (1939) 2 M.L.J. 774 : I.L.R. (1940) Mad. 60 it was held that 'final order' in Article 182(5) means an order putting an end to the application in respect of which it is made. In Rama Reddi v. Motilal Daga I.L.R. (1938) Mad. 326, it is observed at page 334. of the report that
the words ' final order' imply that the proceeding has terminated so far as the Court passing it is concerned.
16. An application to revive or continue an execution petition will lie only when the former petition has not been disposed of finally; vide Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490.
17. It is contended by Mr. Viswanatha Sastri, for the respondent, that since his client sought to obtain Rs. 12, 753-3-3 by means of E.P. No. 173 of 1941, and had recovered only Rs. 2,450, the order made by consent in that petition was not a final disposal of it but that it still remained alive whilst any relief sought by it had not been obtained and, also, that the order does not include a direction that the petition be dismissed.
18. The order was made upon the memorandum of consent which was signed by the parties and their advocates. The formal order of the Court recites that the execution petition came before the Court to be mentioned as 'settled.' When any proceeding is 'settled' by the parties, whether it be a suit or any other proceeding, the subject-matter of it is terminated by the agreement of settlement which they make, unless there is anything from which it is manifest that final settlement was not agreed but that something remained for future agreement, disposal or decision in that proceedings. Whilst the respondent sought to obtain Rs. 12,753 by means of the execution petition, nevertheless, under the terms of the agreement to which he was a party and upon which the order was made, it is provided, out of the sum of Rs. 4,146-8-11 due to the appellant that the respondent should take only Rs. 2,450, the appellant was to have Rs. 1,396-8-11 and three lots of advocates' fees, each of Rs. 100 should also be paid. Those terms indicate a final settlement about the distribution of the available money in Court in respect of which the respondent was entitled to recover the whole. The last term, that the rights of the parties in the sum of Rs. 65,000 remaining in the Court should be worked out in appropriate proceedings separately, make it clear, to my mind, that any further division or allocation of the money in Court was to be the subject of other proceedings and not to be dealt with in the execution petition. If it had been the intention of the parties that the execution petition should remain alive for further disposal and to deal with the other moneys remaining in Court or any other matter of execution, the agreement between the parties and the order by consent made pursuant to that agreement would have contained a term to that effect and there would have been no provision by which the rights of the parties to the money remaining in Court were to be worked out in appropriate proceedings. In my view, there is no doubt that the parties intended to terminate all matters of the execution petition by the agreement which they made and which agreement was intended to effect a final disposal of the execution petition. The order made upon the agreement with the consent of the parties was intended to be, and was, a final order which put an end to the petition. The inclusion in the order of such words as 'dismissal' or 'final disposal' were quite unnecessary; the language of the order itself reflects only that it was a final order terminating all matters in the execution petition. After the order was made there was nothing left for disposal which could be the subject of a subsequent application to revive or continue the execution petition. The order made on the 3rd February, 1943, was final and completely disposed of that petition. It follows that E.P. No. 173 of 1941 does not save limitation running against the respondent's petitions E.P. Nos. 126 and 148 of 1946, and it cannot be revived or continued.
19. Now regarding E.P. No. 77 of 1946 issued in the Devokottah Court on 8th January, 1946. Whilst the decree was passed by that Court, it had been transferred to the High Court in 1941. No application for its re-transfer was made, and the decree remained in the High Court where it still was when E.P. No. 77 of 1946 was issued. Section 42 of the Code of Civil Procedure enacts that the Court executing a decree sent to it shall have the same powers in executing the decree as if it had been passed by itself.' In Pierce Leslie v. Perumal : AIR1918Mad580 , Sir John Wallis, C.J., observed at page 1077 that Section 43 and the following sections,
have the effect of depriving the Court, sending the decree, of authority to execute it itself and of making the Court to which the decree is sent the executing Court to all intents and purposes.
20. In Maharaja of Bobbili v. Sree Raja Narasaraju Pedda Baliar Simhulu Bahadur : (1912)23MLJ236 , it was held that the Court to which a decree is sent for execution, is the only Court which has seisin of the execution proceeding. The powers and jurisdiction of a Court from which its decree has been transferred to another Court were considered at some length and the decisions upon the subject were reviewed in Magi Reddi v. Kotamma : AIR1947Mad431 . There, it was held that, whilst an application may always be made to the Court which passed the decree for an order for re-transferring it and such an application is a step-in-aid of execution and prevents limitation running against the decree-holder, nevertheless a Court to which a decree is sent for execution is the only Court which has seisin of the execution proceedings; and in such a case the Court which passed the decree has no jurisdiction to entertain an execution application unless concurrent execution has been ordered or unless the proceedings in the Court to which the decree was sent has been stayed for the purpose of executing the decree in the first Court. In the present instance neither of the two abovementioned exceptions exists.
21. Mr. Viswanatha Sastri relied upon the decision in Subba Rao v. Ankamma : AIR1933Mad110 . There, an assignee decree-holder applied to the Court which passed the decree to be recognised as such and for concurrent execution. The finding was that such an application was sustainable and that that Court, after entertaining it, need not stay its hand until a certificate under Section 41 of the Code had been received or the records returned. In that case the contention against the application made was that that Court should wait for the above certificate. In my view there is nothing in the last mentioned decision which runs counter to the other authorities which have been cited.
22. E.P. No. 77 of 1946 was issued in the Devakottah Court. That Court had not the decree before it, which is the rescript for its execution, but it was in the custody of the High Court. In the absence of the decree, and since concurrent execution had not been directed and execution of the decree in the High Court had not been stayed, the Devakottah Court had no power or jurisdiction to execute the decree. The only Court at the time when the execution petition was issued in Devakottah, which could execute the decree, was the High Court to which alone an effective application in that behalf could have been made. The Devakottah Court was not, but the High Court was, the proper Court within the contemplation of Article 182(5) by which a final order could have been passed on an application made in accordance with law for execution or to take some step-in-aid of execution. It follows that E.P. No. 77 of 1946 issued in the Devakottah Court was not such an application and its issue by the respondent, although within three years of the final order passed in E.P. No. 173 of 1941 does not save limitation from barring E.P, Nos. 126 and 148 of 1946.
23. In my opinion for the reasons given this appeal should be allowed, the reversal of the learned Master's order should be set aside and that order should be restored. The appellant is entitled to his costs of this appeal and of the hearing before Kunhi Raman, J.
24. The cheque for Rs. 13,203-5-0 drawn in favour of the appellant by the Registrar, now in Court awaiting orders, will remain in Court for fourteen days more. If during that period the respondent presents an application for leave to appeal to His Majesty in Council, the cheque will continue so to remain and its disposal will be dealt with upon the hearing of that application. But if such an application is not made in fourteen days, that cheque, or a fresh cheque, will be handed over to the learned advocate for the appellant.
25. I agree.